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As Reported by House Health, Retirement and Aging Committee
CORRECTED VERSION
123rd General Assembly
Regular Session
1999-2000 | Am. H. B. No. 71 |
REPRESENTATIVES VESPER-VAN VYVEN-D.MILLER-KRUPINSKI-
LAWRENCE-MOTTLEY-CALLENDER-EVANS-HARTNETT-BENDER-SULLIVAN-
OPFER-OLMAN-HOOPS-JONES-PRINGLE-PATTON-HAINES-MAIER-TAYLOR-OGG-
TERWILLEGER-SUTTON-BRADING-HOLLISTER-PADGETT-SCHURING-SMITH
A BILL
To amend section 5122.34
and to enact section 2305.51 of
the Revised Code with regard to actions by
mental health professionals and
organizations to predict, warn of, or take
precautions to prevent the violent behavior of mental
health clients or patients.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 5122.34 be amended
and section 2305.51 of the Revised Code be enacted to read as follows:
Sec. 2305.51. (A) (1) AS USED IN THIS SECTION:
(a) "MENTAL HEALTH CLIENT OR PATIENT" MEANS AN
INDIVIDUAL WHO IS RECEIVING MENTAL HEALTH SERVICES FROM A MENTAL
HEALTH PROFESSIONAL OR ORGANIZATION.
(b) "MENTAL HEALTH ORGANIZATION" MEANS AN ORGANIZATION THAT
ENGAGES ONE OR MORE MENTAL HEALTH PROFESSIONALS TO PROVIDE
MENTAL HEALTH SERVICES TO ONE OR MORE MENTAL HEALTH CLIENTS OR PATIENTS.
(c) "MENTAL HEALTH PROFESSIONAL" MEANS AN INDIVIDUAL WHO IS
LICENSED, CERTIFIED, OR REGISTERED UNDER THE REVISED
CODE, OR OTHERWISE AUTHORIZED IN THIS STATE, TO PROVIDE
MENTAL HEALTH SERVICES FOR COMPENSATION, REMUNERATION, OR OTHER
PERSONAL GAIN.
(d) "MENTAL HEALTH SERVICE" MEANS A SERVICE PROVIDED TO AN
INDIVIDUAL OR GROUP OF INDIVIDUALS INVOLVING THE APPLICATION OF
MEDICAL, PSYCHIATRIC, PSYCHOLOGICAL, COUNSELING, SOCIAL WORK, OR
NURSING PRINCIPLES OR PROCEDURES TO EITHER OF THE FOLLOWING:
(i) THE ASSESSMENT, DIAGNOSIS,
PREVENTION, TREATMENT, OR AMELIORATION OF MENTAL, EMOTIONAL,
PSYCHIATRIC, PSYCHOLOGICAL, OR PSYCHOSOCIAL DISORDERS OR
DISEASES, AS DESCRIBED IN THE MOST RECENT EDITION OF THE
"DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS" PUBLISHED BY THE AMERICAN
PSYCHIATRIC ASSOCIATION;
(ii) THE ASSESSMENT OR IMPROVEMENT OF
MENTAL, EMOTIONAL, PSYCHIATRIC, PSYCHOLOGICAL, OR PSYCHOSOCIAL
ADJUSTMENT OR FUNCTIONING, REGARDLESS OF WHETHER
THERE IS A DIAGNOSABLE, PRE-EXISTING DISORDER OR DISEASE.
(e) "KNOWLEDGEABLE PERSON" MEANS AN INDIVIDUAL WHO HAS
REASON TO BELIEVE THAT A MENTAL HEALTH CLIENT OR PATIENT HAS THE
INTENT AND ABILITY TO CARRY OUT AN EXPLICIT THREAT OF INFLICTING
IMMINENT AND SERIOUS PHYSICAL HARM TO OR CAUSING THE DEATH OF A
CLEARLY IDENTIFIABLE POTENTIAL VICTIM OR VICTIMS AND WHO IS
EITHER AN IMMEDIATE FAMILY MEMBER OF THE CLIENT OR PATIENT OR AN
INDIVIDUAL WHO OTHERWISE PERSONALLY KNOWS THE CLIENT OR PATIENT.
(2) FOR THE PURPOSE OF THIS SECTION, IN THE CASE OF A THREAT TO A READILY
IDENTIFIABLE STRUCTURE, "CLEARLY IDENTIFIABLE POTENTIAL VICTIM" INCLUDES ANY
POTENTIAL OCCUPANT OF THE STRUCTURE.
(B) A MENTAL HEALTH
PROFESSIONAL OR MENTAL HEALTH ORGANIZATION
MAY BE HELD LIABLE IN DAMAGES IN A CIVIL ACTION, OR MAY BE
MADE SUBJECT TO DISCIPLINARY ACTION BY AN ENTITY WITH LICENSING
OR OTHER REGULATORY AUTHORITY OVER THE PROFESSIONAL OR
ORGANIZATION, FOR
SERIOUS PHYSICAL HARM OR DEATH
RESULTING FROM FAILING TO PREDICT, WARN OF, OR
TAKE PRECAUTIONS TO PROVIDE PROTECTION FROM
THE VIOLENT BEHAVIOR OF A MENTAL HEALTH CLIENT OR PATIENT,
ONLY IF THE CLIENT OR PATIENT OR A KNOWLEDGEABLE PERSON HAS
COMMUNICATED TO THE PROFESSIONAL OR ORGANIZATION AN EXPLICIT
THREAT OF INFLICTING IMMINENT AND SERIOUS PHYSICAL HARM TO OR
CAUSING THE DEATH OF ONE OR MORE CLEARLY IDENTIFIABLE POTENTIAL
VICTIMS, THE PROFESSIONAL OR ORGANIZATION HAS REASON TO BELIEVE
THAT THE CLIENT OR PATIENT HAS THE INTENT AND ABILITY TO CARRY
OUT THE THREAT, AND THE PROFESSIONAL OR ORGANIZATION FAILS TO
TAKE ONE OR MORE OF THE FOLLOWING ACTIONS IN A TIMELY MANNER:
(1) EXERCISE ANY AUTHORITY THE PROFESSIONAL OR
ORGANIZATION POSSESSES TO HOSPITALIZE THE CLIENT OR PATIENT ON
AN EMERGENCY BASIS PURSUANT TO SECTION 5122.10 OF THE
REVISED CODE;
(2) EXERCISE ANY AUTHORITY THE PROFESSIONAL OR
ORGANIZATION POSSESSES TO HAVE THE CLIENT OR PATIENT
INVOLUNTARILY OR VOLUNTARILY HOSPITALIZED UNDER CHAPTER
5122. OF THE REVISED CODE;
(3) ESTABLISH AND UNDERTAKE A DOCUMENTED TREATMENT PLAN
THAT IS REASONABLY CALCULATED, ACCORDING TO APPROPRIATE
STANDARDS OF PROFESSIONAL PRACTICE, TO MINIMIZE THE POSSIBILITY
THAT THE CLIENT OR PATIENT WILL CARRY OUT THE THREAT;
(4) COMMUNICATE TO A LAW ENFORCEMENT AGENCY WITH
JURISDICTION IN THE AREA WHERE EACH POTENTIAL VICTIM
RESIDES, WHERE A STRUCTURE THREATENED BY A MENTAL HEALTH CLIENT OR PATIENT IS
LOCATED, OR WHERE THE MENTAL HEALTH CLIENT OR PATIENT RESIDES, AND
IF FEASIBLE, COMMUNICATE TO EACH POTENTIAL VICTIM OR
A POTENTIAL VICTIM'S PARENT OR GUARDIAN IF THE POTENTIAL
VICTIM IS A MINOR OR HAS BEEN ADJUDICATED INCOMPETENT, ALL OF
THE FOLLOWING INFORMATION:
(a) THE NATURE OF THE THREAT;
(b) THE IDENTITY OF THE MENTAL HEALTH CLIENT OR PATIENT
MAKING THE THREAT;
(c) THE IDENTITY OF EACH POTENTIAL VICTIM OF
THE THREAT.
(C) ALL OF THE FOLLOWING APPLY
WHEN A MENTAL HEALTH PROFESSIONAL OR ORGANIZATION TAKES ONE OR
MORE OF THE ACTIONS SET FORTH IN DIVISIONS
(B)(1) TO (4) OF THIS
SECTION:
(1) THE MENTAL HEALTH PROFESSIONAL OR
ORGANIZATION SHALL CONSIDER EACH OF THE ALTERNATIVES SET FORTH
AND SHALL DOCUMENT THE REASONS FOR CHOOSING OR REJECTING
EACH ALTERNATIVE.
(2) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION MAY
GIVE SPECIAL CONSIDERATION TO THOSE ALTERNATIVES WHICH,
CONSISTENT WITH PUBLIC SAFETY, WOULD LEAST ABRIDGE THE RIGHTS OF
THE MENTAL HEALTH CLIENT OR PATIENT ESTABLISHED UNDER THE
REVISED CODE, INCLUDING THE RIGHTS SPECIFIED IN
SECTIONS 5122.27 TO 5122.31 OF THE REVISED CODE.
(3) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION IS NOT REQUIRED
TO TAKE ANY ACTION THAT, IN THE EXERCISE OF
REASONABLE PROFESSIONAL JUDGMENT, WOULD ENDANGER THE
PROFESSIONAL OR ORGANIZATION, INCREASE THE DANGER TO A POTENTIAL
VICTIM, OR INCREASE THE DANGER TO THE MENTAL HEALTH
CLIENT OR PATIENT.
(4) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION IS NOT LIABLE
IN DAMAGES IN A CIVIL ACTION, AND SHALL NOT BE MADE SUBJECT TO
DISCIPLINARY ACTION BY ANY ENTITY WITH LICENSING OR OTHER REGULATORY AUTHORITY
OVER
THE PROFESSIONAL OR ORGANIZATION, FOR DISCLOSING ANY
CONFIDENTIAL INFORMATION ABOUT A MENTAL HEALTH CLIENT OR PATIENT
THAT IS DISCLOSED FOR THE PURPOSE OF TAKING ANY OF THE ACTIONS.
(D) THE IMMUNITIES FROM CIVIL LIABILITY AND DISCIPLINARY
ACTION CONFERRED BY
THIS SECTION ARE IN ADDITION TO AND NOT IN LIMITATION OF ANY
IMMUNITY CONFERRED ON A MENTAL HEALTH PROFESSIONAL OR
ORGANIZATION BY ANY OTHER SECTION OF THE REVISED
CODE OR BY JUDICIAL PRECEDENT.
Sec. 5122.34. (A) Persons, including, but not limited to, boards of
alcohol, drug
addiction, and mental health services and community mental health agencies,
acting in good faith, either upon actual knowledge or information thought by
them to be reliable, who procedurally or physically assist in the
hospitalization or discharge, determination of appropriate placement, or in
judicial proceedings of a person under this chapter, do not come within any
criminal provisions, and are free from any liability to the person
hospitalized or to any other person. No
(B) REGARDLESS OF WHETHER ANY
AFFIRMATIVE ACTION HAS BEEN TAKEN UNDER THIS CHAPTER WITH
RESPECT TO A MENTAL HEALTH CLIENT OR PATIENT AND EXCEPT AS
OTHERWISE PROVIDED IN SECTION 2305.51 OF THE
REVISED
CODE, NO
person shall be liable for any harm
that results to any other person as a result of failing to disclose any
confidential information about a THE mental health client OR
PATIENT, or failing to otherwise
attempt to protect such other person from harm by such client OR
PATIENT. This
(C) THIS section
applies to expert witnesses who testify at hearings under this chapter.
(D) THE IMMUNITY FROM
LIABILITY CONFERRED BY THIS SECTION IS IN ADDITION TO AND NOT IN
LIMITATION OF ANY IMMUNITY CONFERRED BY ANY OTHER SECTION OF THE
REVISED
CODE OR BY JUDICIAL
PRECEDENT.
Section 2. That existing section 5122.34
of the Revised Code is hereby repealed.
Section 3. In amending section 5122.34 and in enacting section
2305.51 of the Revised Code, it is the intent of the General
Assembly to respectfully disagree with and supersede the
statutory construction holdings of the Ohio Supreme Court
relative to section 5122.34 of the Revised Code as set forth in
Estates of Morgan v.
Fairfield Family Counseling Ctr.
(1997), 77 Ohio St. 3d 284, under heading G of section I at
304-305, and, thereby, to supersede the second, third,
and fourth syllabus paragraph holdings of the Court in that
case.
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